184 A. 164 | Md. | 1936
The appellees, now or recently holding licenses of stalls in Belair Market in Baltimore, appealed to the Baltimore City Court from awards of one dollar for damages from condemnation and removal of each of their stalls in the widening of Ensor Street to improve an approach to the Bath Street viaduct across the valley of Jones Falls. The awards were increased on the appeals, and the city's appeals to this court present, principally, questions whether the appellees have rights or interests for which substantial compensation might be awarded, and, if so, what is the measure of the substantial compensation? Necessity for resorting to condemnation is not in dispute. The city has chosen to condemn, and submit for adjudication the questions of amount of compensation.
Proceedings to condemn, authorized by an Ordinance of 1930 (No. 952), were first taken in that year, but only one of the board of three commissioners for opening streets then signed the form of award or assessment to be made; one of the commissioners having declined to join because he thought the amounts awarded too large, and the other, since dead, having failed to do so for a reason now unknown. Appeals were entered by the city from those earlier awards, and rested on the docket of the court during the succeeding five years, until the city solicitor advised the commissioners that the awards were invalid, and caused entirely new proceedings to be instituted. The earlier appeals appear to have been dismissed on the docket, and the trial court admitted the proceedings in them in evidence, and ordered them consolidated with the stall holders' appeals from the new, nominal awards. An objection to carrying on at the same time two proceedings to condemn the same property need *345 not be dwelt upon, since there was no valid initiation of the first proceedings, and the awards reported in them are not to be given consideration on these appeals from the second awards. The trial court's action was erroneous.
The various steps required of the commissioners under sections of the City Charter, secs. 175 to 177 (Code Pub. Loc. Laws 1930, art. 4, secs. 175 to 177), could, according to the terms of the sections as well as by general legal principles, be performed only by a majority of their number. Kirkpatrick v. Lewis,
The statute law governing licenses of stalls, Ordinance No. 283, of May 20th, 1907 (section 16 of article 27 of the Baltimore City Code, 1927), provides that, when a stall is rented or hired out by the clerk of the market, this shall be evidenced by a license from the comptroller in terms to be approved by the board of estimates of *346 the city "for one year and no longer," which shall, with the approval of the comptroller, be transferable and renewable from year to year during the existence of the market, provided the licensee shall have complied with all laws and ordinances. The license fee for use of a stall of the kind here concerned was fixed at $46, and a rent charge at $2, both payable in advance. Section 20 of article 27 of the City Code provides further that when a stall becomes vacant by failure of a tenant to renew the certificate or to pay his license or rent within thirty days after it becomes due, the stand or stall shall revert to the city. A printed form of certificate used permits occupation of the stall for one year from the first of May for the fee and rent stated, prohibits subrenting, and repeats the provision of the ordinance for reversion of the stall to the city if the license fee or rent is not paid within thirty days. Receipt of the money is usually noted on the certificate issued.
There is no evidence of customary dealing with the stalls by the city before 1900. Stalls were sold at auction in some instances, but by whom is not known to witnesses examined. Private sales by individual owners have been common, and high prices have been obtained in the past. Whatever the title of a licensee or tenant, the rights resulting, in this and other markets, have been valued highly, and availed of as investments, subject to sale or pledge, subject to execution for debts, and transmissible at death as assets of the owner's estate. And in the decisions of this court the rights have been allowed this substantial quality and effect. It is known that, in one other market at least, stalls or rights in stalls were once sold by the city at high rates. Rose v. Baltimore,
Elizabeth Ercolano, licensee of a stall numbered 381, to be removed, has been a holder of eleven stalls in the same market, for investment, having purchased them all in 1921 for about $4,500, from persons who were the owners in 1900 and afterwards. Mrs. Ercolano has since sold one for $2,500, and has abandoned five others, retaining No. 381, with four others. That particular stall, however, has not been occupied, except for two months, during the past eight years and more. She paid license fees for it from 1921 to 1934, but has not paid any in 1935, for the current year, and consequently has no certificate or license for it after May 1st, 1935. Lacking sufficient money for payment otherwise, she was permitted by the market master to make delayed payments on other stalls, one at a time, and has done so; but she has paid nothing on No. 381. The market master, in October, 1935, threatened to bring suit for the money, but did not bring it.
Kelm and wife, the other appellees, are holders of licenses for the year beginning May 1st, 1935, the current year, on stalls numbered 233 and 235, having paid the fees for them. These stalls, too, are to be removed. They were purchased by Kelm in 1920 from a William H. Pentz, who appears as holder on the earliest existing record of title. These licensees themselves occupy the stalls as dealers.
Whatever may have been the mode of original acquisition of the stalls from the city, they have been held by the appellees on the terms defined in the ordinances and in the licenses issued. Undoubtedly, the high prices at which licenses or stalls have been sold by holders show that, in the estimates of value, termination within any short time has not been contemplated. And rights acquired in stalls seem to be widely regarded as substantially those of complete ownership, subject, however, to the payment of annual fees. But this court has not been able to see that an expectation of extension beyond a given *348
year could, consistently with the express limitations in the law, have any foundation in legal obligation on the city, or any foundation more secure than a probability based on a custom of renewal to a licensee so long as he pays. The custom could not override or enlarge the express terms of the law. In fact, there would be no inconsistency. What has been "rented or hired," and licensed by the comptroller, is an exclusive right to a particular use of the site and the stall on it, "for one year and no longer," transferable and renewable from year to year with the approval of the comptroller, during the existence of the market. This limitation of term to a year and no longer, and that of renewals, with the approval of the comptroller, to only a year at a time, seem to limit the right secured the appellees at any one time to one year's duration. A legal right in a stall holder to renew during an indefinite number of years at his option, as contended for, would seem inconsistent with this emphatic limitation. See Pfefferling v. Baltimore,
In respect to its legal nature, the stall holder's right, while it lasts, resembles other rights to make use of property, but has its peculiar incidents, and consequently its own appropriate governing principles to some extent. Like the right in a church pew, which it has been found to resemble (Rose v. Baltimore,
There is general agreement that the right of the pew holder is subordinate to the right in the church authorities, in their management of the structure in which the pews are contained, to remove any of them to make changes; and this court, in Rose v.Baltimore,
At the trial of these cases below, the market master declared his ability to give the appellees other stalls with the same advantages of relative position. That would be a change of position of the stalls instead of the complete deprivation of stall rights, which had been decided upon and was the object of the condemnation proceeding. The market master would appear to be without authority to change the proceeding, and even if he were authorized, we think the trial court rightly confined it at that stage to the purpose on which it started. If compensation was allowable in the case, it was compensation in money rather than in a stall in another position.
Applying the principles so stated, it is the opinion of *350
the court, first, that Elizabeth Ercolano, having no license for the year 1935 to 1936, has no rights in stall number 381. By the express terms of the ordinance under which she held her license in preceding years, section 20 of article 27 of the City Code, all rights in the stall reverted to the city upon her failure to pay the fees in the required time, thirty days after May 1st, 1935. On her behalf it is contended that the failure of the city officials to declare that forfeiture had taken place, their forbearance and allowance of additional time for payment, and their subsequent threat of suit at law for the fee and rental for another year, committed the city to her holding over and estopped it from denying the continuation. But, leaving aside any question of the market master's authority to extend the time for payment beyond the limit in the ordinance, and assuming, without deciding, that, if payment had ultimately been received from this stall holder, there would have been the estoppel contended for, still, in the absence of the payment, we find nothing to convert the opportunities given for it into the renewal of license which might have been purchased. The indulgence could not rightly be given that effect after failure of its purpose. See Brantly'snote to Alexander v. Walter, 8 Gill, 239, 241; Hardy v.Chesapeake Bank,
The appellees in the second case, Kelm and wife, have by virtue of the license for that period a contract for use and occupation of their stalls for the year ending May *351
31st, 1936. But the city having decided not to continue the stalls, and renew the license for another year, they have nothing more. This is all for which they could be compensated in a condemnation proceeding. While it is not property that is to be taken, merely facilities or rights to use, such rights as well as land may be condemned and compensated for if the city so elects, whether the contract is to be classed as a lease or a license.Baltimore v. Park Land Corp.,
Rulings of the trial court on evidence are questioned. Error is found in admission of evidence of amounts paid or offered to be paid in the past for sales of stalls, and amounts of rentals paid or offered in 1930. These facts would have no bearing on estimating the value of the rights in the stalls for the remainder of the current year only, with all prospect of continuance beyond that time removed. Error is found also in admission of evidence that since the institution of the condemnation proceedings the number of vacant stalls in this market has increased, for the fact seems likewise irrelevant to the issue of value of the rights in the Kelm stalls for the current year. Evidence *352
of the value of movable equipment of the stalls was wrongly admitted, we think, as that personal property was not condemned.Baltimore v. Gamse Bro.,
Judgments reversed on both appeals, without a new trial in No.13, and with a new trial in No. 14, with costs to the appellantin each case.